Let us identify the main protagonists: an island divided in two parts since 1974; a Member State unable to exercise control over a considerable part of its territory in the north part of the island; a candidate country occupying that territory; a self-proclaimed state in that territory recognised only by the candidate country; the Union succeeding in principle in facilitating the movement across the dividing line between the two areas(1) but failing to agree on direct trade with the northern part of the island; in the last 35 years, the international community unable to broker a deal acceptable by all parties.

To describe the above context as fraught with problems is an understatement. It is in this context that the Grand Chamber of the Court of Justice rendered its judgment of April 28, 2009 in Apostolides (C-420/07). The central question was the following: is a judgment of a Cypriot court about property in the northern part of the island where the Republic of Cyprus does not exercise effective control enforceable by the courts of other Member States? The case was about land owned by the Orams, a couple of British citizens who had bought it in Kyrenia, the northern part of Cyprus. The original owner of the property was a Cypriot citizen who was forced to abandon it in 1974, following Turkey’s military intervention. Having obtained a judgment by a Cypriot court, confirmed on appeal by the Cypriot Supreme Court, Mr Apostolides sought to enforce it in the United Kingdom by relying upon Regulation 44/2001 on jurisdiction and the recognition of enforcement of judgments(2). The High Court’s decision to turn down his request was challenged by Mr Apostolides before the Court of Appeal which, then, made a reference to the Court of Justice. Whilst the whole of Cyprus has acceded to the European Union, Protocol No.10, which is annexed to the 2003 Accession Treaty, suspends in Art.1 the application of the acquis communautaire in those areas of the island where the Government of the Republic of Cyprus does not exercise effective control. What is the effect that this state of affairs has on the application of Regulation 44/201?

The Court points out the exceptional nature of the suspension of the acquis and the need for it to be interpreted strictly. It, then, states that the judgment whose recognition gave rise to the reference was given by a court sitting in the Government-controlled area, where the application of the acquis was not suspended. This was despite the fact that the judgments concerned land situated in the northern area: on the one hand, this does not nullify the obligation of courts in Member States to apply Regulation 44/2001 to judgments given by courts in the Government controlled area and, on the other hand, it does not mean that that Regulation should be applied in the northern area. Once the applicability of Regulation 44/2001 is affirmed, the Court deals with questions about its application by putting forward a similarly literal interpretation: the conditions for refusal of recognition by a national court of a judgment rendered by a court of another Member State should be interpreted strictly; Regulation 44/2001 does not enable national courts to refuse the enforceability of a judgment by a court of another Member State on the basis of practical difficulties about its execution; only the violation of a fundamental principle of the legal order of the United Kingdom by the Cypriot court would justify the refusal by the former to enforce the latter’s ruling. The tenor of the ruling in Apostolides is governed by a strict construction of Art.1 of Protocol 10 and Regulation 44/2001, and a distinct reluctance to depart from the literal interpretation of the wording of the above rules.

This approach also underpinned a series of previous judgments which the Court delivered on trade in products originating in the north part of Cyprus. In the Anastasiou litigation(3), the Community rules on the origin and phytosanitary documents accompanying produce originating in the northern part of Cyprus were interpreted strictly and applied almost mechanically(4). It is interesting that an institution which has often been reproached for engaging in a creative construction of EC law should be so keen to be as faithful as possible to the wording of the rules which it has been asked to interpret. However, the cautious approach adopted in Apostolides by no means renders the Court beyond controversy. On the one hand, there is a process for the settlement of property disputes in northern Cyprus set out by the administration in the area which has been deemed by the European Court on Human Rights to meet, in principle, the ECHR requirements about an adequate and effective remedy (5). Whilst this point was made by the Commission and addressed by A.G. Kokott, the Court did not mention that possibility at all, instead focusing on the nature of the dispute as between individuals. On the other hand, the judgment is seen in some quarters as complicating the negotiations between the two parties which commenced in October 2008, perhaps encouraging similar actions which might undermine the economy of north Cyprus or make the Turkish Cypriot community consider leaving the negotiating table(6).

The interpretation of the suspension of the acquis cannot be devoid of legal and political implications. And yet, an effort to address the above issues on the basis of a different interpretation of Protocol 10 and Regulation 44/2001 would have placed the Court at the very centre of a most controversial conflict. Therefore, the strictly literal interpretation of the relevant EC rules enabled Europe’s judges to respond to this type of political sensitivity by adopting as detached an approach as possible. To have responded to the reference in another way would have been tantamount to dealing with a box which Pandora herself would be loath to open.

(1) Regulation 866/2004 [2004] OJ L206/51. See N. Skoutaris, “The application of the acquis communautaire in the areas not under the effective control of the Republic of Cyprus: The Green Line Regulation” (2008) 45 C.M.L. Rev. 727.

(2) [2001] OJ L12/1.

(3) R. v Ministry of Agriculture, Fisheries and Food Ex p. SP Anastasiou (Pissouri) Ltd (Anastasiou I) (C- 432/92) [1994] E.C.R. I-3087; [1995] 1 C.M.L.R. 569; Anastasiou II (C-219/98) [2000] E.C.R. I-5241; [2000] 3 C.M.L.R. 339; Anastasiou III (C-140/02) [2003] E.C.R. I-10635.

(4) See P. Koutrakos, “Legal issues of EC-Cyprus Trade Relations” (2003) 52 I.C.L.Q. 489, and S. Laulh´e Shaelou, “The European Court of Justice and the Anastasiou Saga: Principles of Europeanisation through Economic Governance” (2007) 18 E.B.L.R. 619.

(5) Xenides-Arestis v Turkey (46347/99) (2007) 44 E.H.R.R. SE13 ECtHR, along with Demades v Turkey (16219/90), judgment of April 22, 2008, and Michaelidou et al v Turkey (161613/90), judgment of April 22, 2008.

(6) Financial Times, April 28, 2009.

This Editorial Article was first published in 34 E.L. REV. June (2009).